There was no need to arrest AAP MLA Dinesh Mohaniya, says Justice Katju

The AAP MLA Dinesh Mohania was arrested by the Delhi police. The charge against Mohaniya was that he had misbehaved with a group of women who had approached him with a complaint of water crisis in their locality.

I am not going into the question whether the charge was true or false, as that will be decided by the Court on the evidence. I do not have the evidence with me, and therefore I cannot comment on it.

I am, however, on a much more fundamental issue. Where was the need of arresting Mohaniya? In my opinion the police could have made an investigation and could have interrogated Mohaniya without arresting him.

In Joginder Kumar vs. State of U. P. A.I.R. 1994 S.C. 1349 ( see online ) the Supreme Court observed : ” No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another.The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. “

The MLA being dragged by cops
Let me explain the legal position in this connection.

It may be mentioned that arrest is not a must in every case where an F.I.R. of a cognizable offence is registered with the police. This is obvious from section 157 (1) Criminal Procedure Code. which reads :
” 157. Procedure for investigation
(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender; ”

I am, however, on a much more fundamental issue. Where was the need of arresting Mohaniya? In my opinion the police could have made an investigation and could have interrogated Mohaniya without arresting him.

The use of the words “and, if necessary ” in the above provision clearly indicates that it is not incumbent on the police to arrest in every case, rather it is discretionary. And this discretion has to be excercised depending on the gravity of the offence. If the charge was of murder, dacoity , rape or some such serious offence, then of course the arrest could have been justified, but this was not a case of such a nature.

In Joginder Kumar vs. State of U. P. A.I.R. 1994 S.C. 1349 ( see online ) the Supreme Court observed : ” No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another.The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. ”

Unfortunately in our country the practice of our police has been that the moment an F.I.R. is lodged it goes to make an arrest. But this is an illegal practice.

Thus the Supreme Court has held that arrest is not a must in every case. In the same decision the Supreme Court has noted that the National Police Commission in its Third Report has observed that 60% arrests in India are unnecessary or unjustified, and that arrests are a major source of corruption in the police.

Unfortunately in our country the practice of our police has been that the moment an F.I.R. is lodged it goes to make an arrest. But this is an illegal practice, as pointed out above.

In my opinion arrest was unnecessary in this case. If the police wished to interrogate Mohaniya and investigate the allegations against him, they could have done so without arresting him. After all he was not going to abscond.

It is time now that the correct legal position be made known to all policemen. The AAP leaders have alleged that the arrest of Mohaniya was at the instance of the central government.

I do not know whether this allegation is true or not, but if it is true, the policemen concerned who carried out this illegal order of their political masters can not escape accountability on the pretext that orders are orders.

In the Nuremburg Trials after the Second World War the Nazi War criminals took plea that orders are orders, and that they were only carrying out the orders of their political master Hitler. However, this plea was rejected, and many of the accused were sentenced to be hanged.

So our policemen should heed this warning : they must not carry out illegal orders, whether written or oral, of political masters or their superiors, otherwise they themselves may be given severe punishment.

The author is a former Supreme Court judge and ex chairman of Press Council of India. Views expressed here the author’s own.

3 COMMENTS

Well written Article by the Rtd Honble judge of the supreme court, but I am unable to understand why the mla was not granted immediate bail if the matter was not so serious, it means the court is also at the behest of central govt, which is very unfortunate and ridiculous

All cases made by Delhi police on MLAs of AAP party, are false, trying to defame Party on political revelary Of politics, Petition should be filed in each case in High Court to change the investigation of the case with honest investigation Officer. There is no other way to do work honestly in Delhi by AAP Govt. except with the help of court.